United States v. Juan Garcia-Rivas

FILED

UNITED STATES COURT OF APPEALS MAR 26 2013

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 11-10556

Plaintiff - Appellee, D.C. No. 4:11-cr-00043-CKJ-

HCE-

v. District of Arizona, Tucson

JUAN CARLOS GARCIA-RIVAS,

Defendant - Appellant. ORDER

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

The memorandum disposition and partial dissent filed on February 8, 2013

are withdrawn. A replacement memorandum disposition and a replacement partial

dissent are being filed concurrently with this Order. With the revisions made to the

memorandum disposition, the Petition for Panel Rehearing filed on February 19,

2013 is DENIED. No further petitions for panel rehearing or petitions for

rehearing en banc will be entertained.

FILED

NOT FOR PUBLICATION MAR 26 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No.…

ORDER

The memorandum disposition and partial dissent filed on February 8, 2013 are withdrawn. A replacement memorandum disposition and a replacement partial dissent are being filed concurrently with this Order. With the revisions made to the memorandum disposition, the Petition for Panel Rehearing filed on February 19, 2013 is DENIED. No further petitions for panel rehearing or petitions for rehearing en banc will be entertained.

MEMORANDUM *

Juan Carlos Garcia-Rivas appeals his conviction under 8 U.S.C. § 1326 (a), enhanced by 8 U.S.C. § 1326 (b)(1), for illegally reentering the United States after having previously been deported. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, vacate in part, and remand for further proceedings consistent with this disposition.

The district court did not err in concluding that it was legally irrelevant that Garcia-Rivas was trying to leave the country when he was stopped and detained by Customs and Border Protection (CBP). Garcia-Rivas may have been able to avoid prosecution for illegal reentry by leaving the country before being caught, see United States v. Ayala, 35 F.3d 423, 425 (9th Cir.1994), but the mere fact that…

concurring in part and dissenting in part.

I concur in the majority’s conclusion that Garcia-Rivas’s subjective intent to leave the country did not undermine the conclusion that he was “found in” the United States for purposes of 8 U.S.C. § 1326 (a). I also concur in the majority’s conclusion that Garcia-Rivas received adequate Miranda warnings. Nevertheless, I respectfully dissent from the majority’s probable cause analysis.

The majority explains that unlawful presence alone is insufficient to support a conclusion of probable cause. The majority then discounts Garcia-Rivas’s nervousness and failure to produce identification.

While I do not disagree that each factor identified by the majority — unlawful presence, nervousness, and failure to produce identification — may not be sufficient alone to provide probable cause, I conclude that the majority’s analysis does not adequately assess the combination of factors that faced Officer Falcon — the initial officer confronting Garcia-Rivas — and fails to give weight to Officer Falcon’s experience as a border agent.

“[Bjorder agents ... need probable cause to make a warrantless arrest of an individual.” United States v. Hernandez, 322…